HomeMy WebLinkAboutord2017-027strike onlyWHATCOM COUNTY COUNCIL AGENDA BILL No. 2017 -63A
CLEARANCES
Initial
Date
Date Received in Council Of
rce
Agenda Date
Assigned to:
Originator:
M.A.
312912017
411812017
Introduction
Matt W. Aamot
F E (C E � V E D
lj� V
APR 11 2017
Division Head:
Mark Personius
T 2-9. i7
5/16/17
Public Hearing
Dept. Head:
Sam Ryan
3-31- 1 q
Prosecutor:
Royce Buckingham
r
�
wHATCOM COUN 1 i /
PurchasinglBudget:
COUNCIL
Executive:
Jack Louws
/
TITLE OF DO ENT.
Y Comprehensive Plan amendments relating to the Cherry Point Urban Growth Area.
ATTACHMENTS:
1. Cover letter
2. Draft Ordinance
SEPA review required? ( X ) Yes ( ) NO
Should Clerk schedule a hearing? (X) Yes ( ) NO
SEPA review completed? (X ) Yes ( ) NO
SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public
hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be
clear in explaining the intent of the action.)
The Whatcom County Council approved Resolution 2016 -027 initiating amendments to the Cherry Point Urban
Growth Area section of the Whatcom County Comprehensive Plan on July 26, 2016. In accordance with this
Resolution, the County is reviewing proposed amendments to Whatcom County Comprehensive Plan Chapter
Two — Land Use including provisions relating to environmental protection, water usage, fossil fuel exports, and
the number of piers allowed in the Cherry Point area.
COMMITTEE ACTION.•
COUNCIL ACTION:
4/18/2017: Introduced
5/16/2017: Forwarded for concurrent review 6 -1, Brenner
opposed, Ord. 2017 -027
5/16/2017: Motion carried 6 -1, Brenner oopposed, to
approve all Comprehensive Plan amendements
concurrently
*6/1/2017: The Executive Declined to sign the ordinance
Related County Contract #:
Related File Numbers:
Ordinance or Resolution Number:
County Planning File #
PLN2016 -00012
Ord. 2017 -027
Agenda Bill # 2017 -063
Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on
the County's website at. www.co.whatcom.wa.us /council.
3 -29 -2017
PROPOSED BY:
INTRODUCTION DATE: 4/18/2017
ORDINANCE NO. 2017 -027
ADOPTING WHATCOM COUNTY COMPREHENSIVE PLAN
AMENDMENTS RELATING TO THE
CHERRY POINT URBAN GROWTH AREA
WHEREAS, The County Council initiated proposed amendments to the
Cherry Point Urban Growth Area section of the Whatcom County Comprehensive
Plan in July 2016; and
WHEREAS, The Whatcom County Planning Commission considered the
original Council Proposal and alternatives; and
WHEREAS, The Whatcom County Planning Commission issued
recommendations in January 2017; and
WHEREAS, The Whatcom County Council considered Growth Management
Act provisions, Planning Commission recommendations, and public comments; and
WHEREAS, The County Council hereby adopts the following findings of fact:
FINDINGS OF FACT
1. The Cherry Point Major /Port Industrial Urban Growth Area (UGA), and
associated goals & policies, were established in 1997 when the
Whatcom Comprehensive Plan was adopted. The Cherry Point UGA
boundaries did not change in the 2009 UGA review or the 2016 UGA
review.
2. The Cherry Point UGA is currently zoned for Heavy Impact Industrial
and Light Impact Industrial land uses. The Cherry Point UGA zoning
generally does not allow residential development.
3. The Whatcom County Council approved Resolution 2016 -027 initiating
amendments to the Cherry Point UGA section of the Whatcom County
Comprehensive Plan (in Chapter Two - Land Use) on July 26, 2016.
In accordance with this Resolution, the County reviewed proposed
amendments to the Cherry Point section of the Comprehensive Plan
Page 1 of 16
including provisions relating to environmental protection, water usage,
fossil fuel exports, and the number of piers allowed.
4. Growth Management Act (GMA) Planning Goal 11, relating to citizen
participation and coordination, is to "Encourage the involvement of
citizens in the planning process and ensure coordination between
communities and jurisdictions to reconcile conflicts" (RCW
36.70A.020(11)).
5. The GMA requires the County to establish and broadly disseminate a
public participation program identifying procedures providing for early
and continuous public participation in the development and
amendment of comprehensive land use plans (RCW 36.70A.140).
Whatcom County developed a Public Participation Plan to guide the
planning process and has followed that Plan.
6. The original County Council Proposal and two alternatives were posted
on the County website on September 14, 2016.
7. The Whatcom County Planning Commission and Whatcom County
Planning & Development Services Department held a combined town
hall meeting /SEPA public hearing regarding the County Council
Proposal and alternatives on October 13, 2016.
8. The Whatcom County Planning Commission conducted a work session,
which allowed public comment, on October 27, 2016.
9. The Whatcom County Planning Commission conducted a work session,
which allowed public comment, on November 10, 2016.
10. The Whatcom County Planning Commission held a public hearing on
December 8, 2016.
11. The Whatcom County Planning Commission conducted a work session,
which allowed public comment, and issued recommendations on
January 12, 2017.
12. Notices of these public meetings were sent to citizens, media, cities,
Skagit County, Tribal governments, and other groups on the County's
e -mail list on September 14, 2016, October 20, 2016, November 2,
2016, November 16, 2016, and December 9, 2016.
Page 2 of 16
13. Notices of the Planning Commission's public hearings were published
in the Bellingham Herald on September 23, 2016 and November 25,
2016.
14. Notice of proposed amendments was submitted to the Washington
State Department of Commerce on November 16, 2016 pursuant to
RCW 36.70A.106.
15. A Determination of Non - Significance was issued under the State
Environmental Policy Act on November 22, 2016.
16. The County Council held a public hearing on May 16, 2017.
Whatcom County Code - Approval Criteria
17. Pursuant to Whatcom County Code 2.160.080, in order to approve
comprehensive plan amendments, the County must find the following:
a. The amendment conforms to the requirements of the Growth
Management Act, is internally consistent with the county -wide
planning policies and is consistent with any interlocal planning
agreements.
b. Further studies made or accepted by the Department of Planning
and Development Services indicate changed conditions that show
need for the amendment.
c. The public interest will be served by approving the amendment. In
determining whether the public interest will be served, factors
including but not limited to the following shall be considered:
i. The anticipated effect upon the rate or distribution of population
growth, employment growth, development, and conversion of
land as envisioned in the comprehensive plan.
ii. The anticipated effect on the ability of the county and /or other
service providers, such as cities, schools, water and /or sewer
purveyors, fire districts, and others as applicable, to provide
adequate services and public facilities including transportation
facilities.
iii. Anticipated impact upon designated agricultural, forest and
mineral resource lands.
Page 3 of 16
d. The amendment does not include or facilitate spot zoning.
e. Amendments that propose the expansion of an urban growth area
boundary are required to acquire development rights from a
designated Transfer of Development Rights sending area, with
certain exceptions including UGA expansions initiated by a
government agency.
Growth Management Act
18. The GMA establishes planning goals in RCW 36.70A.020 to guide
adoption of comprehensive plans.
19. GMA Planning Goal 1, relating to urban growth, is to "Encourage
development in urban areas where adequate public facilities and
services exist or can be provided in an efficient manner" (RCW
36.70A.020(1)).
20. GMA Planning Goal 5, relating to economic development, is to:
Encourage economic development throughout the state that is
consistent with adopted comprehensive plans, promote economic
opportunity for all citizens of this state, especially for unemployed
and for disadvantaged persons, promote the retention and
expansion of existing businesses and recruitment of new
businesses, recognize regional differences impacting economic
development opportunities, and encourage growth in areas
experiencing insufficient economic growth, all within the capacities
of the state's natural resources, public services, and public facilities
(RCW 36.70A.020(5)).
21. GMA Planning Goal 7, relating to permits, states "Applications for both
state and local government permits should be processed in a timely
and fair manner to ensure predictability" (RCW 36.70A.020(7)).
22. GMA Planning Goal 9, relating to open space and recreation, is to
"Retain open space, enhance recreational opportunities, conserve fish
and wildlife habitat, increase access to natural resource lands and
water, and develop parks and recreation facilities" (RCW
36.70A.020(9)).
23, GMA Planning Goal 10, relating to the environment, is to "Protect the
environment and enhance the state's high quality of life, including air
and water quality, and the availability of water" (RCW
36.70A.020(10)).
Page 4 of 16
24. GMA Planning Goal 13, relating to historic preservation, is to "Identify
and encourage the preservation of lands, sites, and structures, that
have historical or archaeological significance" (RCW 36.70A.020(13)).
25. The GMA requires that a comprehensive plan must be an internally
consistent document (RCW 36.70A.070). Shoreline management
program goals and policies are considered part of the County's
Comprehensive Plan (RCW 36.70A.480(1)).
26. The GMA requires consistency between the comprehensive plan and
development regulations (RCW 36.70A.040(3)). Development
regulations include shoreline management program regulations and
zoning ordinances (RCW 36.70A.030(7)).
Policy 2CC -2
27. Existing Whatcom County Comprehensive Plan Policy 2CC -2 is to
"Ensure that developments in the Cherry Point UGA maintain
management plans to accomplish the goals of the Aquatic Reserve
Management Plan."
28. The subject amendment would change Policy 2CC -2 to "Encourage
developments in the Cherry Point UGA to maintain and operate under
management plans consistent with the Aquatic Reserve Management
Plan."
29. The Washington State Department of Natural Resources (DNR)
originally issued the Cherry Point Environmental Aquatic Reserve
Management Plan in November 2010, and amended the Plan in
January 2017. The goals of this Plan (p. 2) are set forth below:
Goal One: Identify, protect, restore and enhance the functions
and natural processes of aquatic nearshore and subtidal
ecosystems that support endangered, threatened and sensitive
species and aquatic resources identified for conservation in the
Reserve.
Goal Two: Improve and protect water quality to maintain public
health, support fish and wildlife species and healthy functioning
habitats.
Goal Three: Protect and help recover indicator fish and wildlife
species and habitats, with primary focus on Cherry Point
herring, Nooksack Chinook salmon, groundfish, marine
mammals, seabird /duck and shorebird communities, Dungeness
crab, and submerged native aquatic vegetation.
Page 5 of 16
Goal Four: Facilitate stewardship of habitats and species by
working in cooperation with lessees, recreational users and
federal, state and tribal resource agencies to minimize and
reduce identified impacts of human activities on the species and
habitats within the Reserve.
Goal Five: Identify, respect, and protect archaeological,
cultural, and historical resources within the Reserve. Continue to
respect the right of Washington's tribes to use their own natural
and cultural resources as recognized by treaties, statutes,
executive orders, and court decisions.
30. The Cherry Point Environmental Aquatic Reserve Management Plan
(DNR, amended January 2017) states:
... there are no existing use authorizations on state -owned
aquatic lands within the Cherry Point Aquatic Reserve. The existing
use authorizations are located in the "cutouts" directly adjacent to
or abutting the reserve. DNR cannot alter the terms and conditions
of an existing lease, easement, or other use authorization without
consent of the tenant or grantee.
This management plan does not alter existing contractual rights
and obligations. Existing tenants or grantees may continue to
conduct their activities in conformance with their current use
authorization and in compliance with other local, state and federal
regulations. DNR will encourage voluntary and cooperative efforts
of existing lessees to implement the elements of this plan (p. 50).
31. Whatcom County does not enforce state plans such as the Cherry
Point Environmental Aquatic Reserve Management Plan. Additionally,
the Washington State DNR encourages voluntary /cooperative efforts of
existing aquatic lease- holders to meet the goals of the Cherry Point
Environmental Aquatic Reserve Management Plan. Consistent with this
approach, revised Policy 2CC -2 encourages Cherry Point industries to
operate under plans that are consistent with the Cherry Point
Environmental Aquatic Reserve Management Plan. However, Policy
2CC -2 does not place Whatcom County in the role of enforcing this
state plan.
Page 6of16
New Policy 2CC -3
32. New Policy 2CC -3 states:
Encourage that future developments or expansions within the
Cherry Point UGA are consistent with the following:
• Clean and reduced carbon emitting technology;
• Avoidance of estuaries and near shore wetlands;
• Archeological review;
• Water recycling technology to minimize water use; and
• Enhance existing and future industries.
33. Existing Whatcom County Comprehensive Plan Policy 7G -1 is to
"Recognize the natural environment as a major asset and manage
environmental resources accordingly. We need both economic
prosperity and environmental sustainability."
34. Existing Whatcom County Comprehensive Plan Policy 1OM -4 is to
"Encourage land development to avoid wetland impacts..."
35. Existing Whatcom County Comprehensive Plan Goal 2AAA is to:
Recognize Whatcom County's historical and archeological
attributes and identify and encourage the preservation of lands,
sites, and structures that have historic or archeological
significance.
36. Existing Whatcom County Comprehensive Plan Goal 10 -I is to "Support
water conservation, reclamation, reuse measures, and education as a
means to ensure sufficient water supplies in the future." Additionally,
Comprehensive Plan Policy 10I -1 is to "Support and assist water users
in the development of cost - effective means of improving efficiency of
water use."
37. New Policy 2CC -3, which is non - regulatory in nature, is intended to
encourage a healthy environment, while enhancing existing and future
industry. Additionally, it does not conflict with existing Comprehensive
Plan policies.
Policy 2CC -11
38. Whatcom County Comprehensive Plan Policy 2CC -10 currently states:
It is the policy of Whatcom County to limit the number of piers at
Cherry Point by establishing a development moratorium.
Notwithstanding the above, this moratorium shall not affect, nor
otherwise apply to, any proposed pier that Whatcom County
approved under its Shoreline Management Program prior to
adoption of the moratorium.
Page 7of16
39. The original County Council Proposal (from July 2016) would have
changed this policy to prohibit additional industrial piers in the Cherry
Point area.
40. A Civil Deputy Prosecuting Attorney for Whatcom County issued a
memorandum dated October 14, 2016 during the Planning
Commission review process. This memo states:
This policy purports to limit the number of piers in the area to the
three existing piers. Regulations should be developed to
implement this policy. It should be noted that this policy would be
subject to any vested projects or settlement agreements already
in place.
41. The GMA requires internal consistency between the Comprehensive
Plan and Shoreline Management Program.
42. Whatcom County Shoreline Management Program policy
23.100.170.A. i.c states:
... water - dependent terminal facilities are encouraged as the
preferred use in the Cherry Point management area. Due to the
environmental sensitivity of the area, it is the policy of Whatcom
County to limit the number of piers to one pier, in addition to
those in operation or approved as of January 1, 1998.
43. Whatcom County Shoreline Management Program regulation
23.100.170.B.4.a, which also relates to the Cherry Point Management
Area, states:
... Due to the environmental sensitivity of the area, Whatcom
County shall limit the number of piers to one pier, in addition to
those in operation as of January 1, 1998.
44. The subject amendment to Policy 2CC -11 (formerly 2CC -10) states
that it is the policy of Whatcom County to limit the number of
industrial piers at Cherry Point to the existing three piers, taking into
account the need to "... Honor any existing vested rights or other
legally enforceable agreements for an additional dock /pier ..." and
several other factors.
45. Additionally, the subject amendment to Policy 2CC -11 indicates ". .
Update the Whatcom County Shoreline Master Program to conform
with this policy..." This approach provides direction to update the
Whatcom County Shoreline Management Program to maintain
consistency with the Comprehensive Plan.
Page 8 of 16
Policy 2CC -15
46. The Magnuson Amendment (33 USC Sec. 476) states:
... no officer, employee, or other official of the Federal
Government shall, or shall have authority to, issue, renew, grant,
or otherwise approve any permit, license, or other authority for
constructing, renovating, modifying, or otherwise altering a
terminal, dock, or other facility in, on, or immediately adjacent to,
or affecting the navigable waters of Puget Sound, or any other
navigable waters in the State of Washington east of Port Angeles,
which will or may result in any increase in the volume of crude oil
capable of being handled at any such facility (measured as of
October 18, 1977), other than oil to be refined for consumption in
the State of Washington.
47. The United States Court of Appeals for the Ninth Circuit interpreted the
Magnuson Amendment in the case of Ocean Advocates v. U.S. Army
Corps of Engineers, 402 F.3d 846 (9th Cir. 2005) stating:
... When analyzing capacity, courts should therefore not look to
the capacity of the refinery, but rather to the capacity of the
terminal. Such an understanding is supported by the legislative
history of the amendment; just before passage of the amendment,
Senator Magnuson remarked: "In fact, the amendment only applies
to construction or alteration of dock facilities in the Puget Sound
region, not to refineries as such ".. .
48. A Civil Deputy Prosecuting Attorney for Whatcom County issued a
memorandum dated October 14, 2016 stating:
... the federal Magnuson Amendment restricts the flow of
interstate commerce by erecting a barrier against the movement of
interstate trade ( "domestic and international traffic of tankers" 33
U.S.C.A. § 476). This is the legitimate province of federal
regulation. Interstate commerce is not the province of State or
County regulation. Put simply, Whatcom County ... has very
limited power to erect barriers to interstate trade. (p. 4).
49. New Policy 2CC -15 states:
Whatcom County will encourage federal agencies, including the
U.S. Army Corps of Engineers, to enforce the provisions of the
Magnuson Amendment (33 USC Sec. 476). To accomplish this the
County will make appropriate federal agencies aware of applications
for development permits submitted to the County that staff thinks
may be subject to federal agency review under the Magnuson
Amendment.
Page 9of16
50. The subject policy language, which is non - regulatory in nature,
encourages federal agencies to enforce the provisions of the Magnuson
Amendment and indicates that the County will notify federal agencies
if County receives a permit application that could be subject to federal
agency review under the Magnuson Amendment. As such, it does not
erect any local barriers to interstate or international commerce.
Policy 2CC -16
51. New Policy 2CC -16 states:
The County shall undertake a study to be completed if possible
by December of 2017 to examine existing County laws,
including those related to public health, safety, development,
building, zoning, permitting, electrical, nuisance, and fire codes,
and develop recommendations for legal ways the County may
choose to limit the negative impacts on public safety,
transportation, the economy, and environment from crude oil,
coal, liquefied petroleum gases, and natural gas exports from
the Cherry Point UGA above levels in existence as of March 1,
2017.
To provide clear guidance to current and future county councils
on the County's legal rights, responsibilities and limitations
regarding interpretation and application of project evaluation
under Section 20.88.130 (Major Projects Permits) of the
Whatcom County Code.
The County should consider any legal advice freely submitted to
the County by legal experts on behalf of a variety of stakeholder
interests, and make that advice publicly available.
Based on the above study, develop proposed Comprehensive
Plan amendments and associated code and rule amendments
for Council consideration as soon as possible.
Until the above mentioned amendments are implemented,
the Prosecuting Attorney and /or the County Administration
should provide the County Council written notice of all known
pre - application correspondence or permit application
submittals and notices, federal, state, or local, that involve
activity with the potential to expand the export of fossil fuels
from Cherry Point.
52. This new policy addresses a study, formulation of proposed
Comprehensive plan and code amendments for future consideration,
and notification. However, this policy does not impose any restrictions
on Cherry Point industries.
Page 10 of 16
Policy 2CC -17
53. New Policy 2CC -17 states that "Policy 2CC -16 shall not limit existing
operations or maintenance of existing facilities as of March 1, 2017."
54. This new policy ensures that implementation of Policy 2CC -16 will not
hinder operation or maintenance of existing industries in the Cherry
Point UGA.
County -wide Planning Policies
55. The GMA requires counties to adopt county -wide planning policies in
cooperation with cities. County -wide planning policies provide a
framework from which county and city comprehensive plans are
developed and facilitate consistency between comprehensive plans
(RCW 36.70A.210). County -wide Planning Policies are contained in
Appendix C of the Whatcom County Comprehensive Plan.
56. County -wide Planning Policy E -3 states:
Cherry Point shall be designated as an unincorporated industrial
urban growth area in recognition of existing large scale industrial
land uses. Additional large scale development shall be encouraged
consistent with the ability to provide needed services and
consistent with protecting critical areas along with other
environmental protection considerations. The Cherry Point
industrial area is an important and appropriate area for industry
due to its access to deep water shipping, rail, all- weather roads, its
location near the Canadian border, and its contribution to the
County's goal of providing family wage jobs.
57. County -wide Planning Policy I -2 states:
New business development and expansion of existing businesses
are key factors in providing "family wage" jobs and a strong tax
base. Economic development that pays family wage rates should be
encouraged. Industrial land designations must be sufficient to
permit the concentration of industry in appropriate locations
beyond 20 years. In order to attract new industry and provide for
expansion of existing industries, the county and the cities will
designate land supply of sufficient size and diversity to provide a
range of suitable locations for industrial development. The
designation of this land shall be established in a way that preserves
natural resource based industries and critical areas.
58. County -wide Planning Policy I -5 states "... Economic development
shall be coordinated with environmental concerns to protect the
quality of life..."
Page 11 of 16
59. County -wide Planning Policy I -8 states:
Economic development should be encouraged that:
a. Does not adversely impact the environment;
b. Is consistent with community values stated in local
comprehensive plans;
c. Encourages development that provides jobs to county
residents;
d. Addresses unemployment problems in the county and
seeks innovative techniques to attract different industries
for a more diversified economic base;
e. Promotes reinvestment in the local economy;
f. Supports retention and expansion of existing businesses.
60. County -wide Planning Policy I -11 states:
Whatcom County encourages siting of industrial uses in proximity
to and to further utilization of our access to deep water and port
facilities for shipping, rail, airports, roadways, utility corridors and
the international border.
61. County -wide Planning Policy N -1 states:
The cities, and the county, in cooperation with other municipal
corporations, tribal governments, federal and state agencies, and
public and private utilities shall cooperate in the protection of water
resources and in drawing upon said water to support growth.
62. The Cherry Point UGA goals and policies, including the subject
amendments, recognize the importance of both industrial development
and the environmental assets of the area. The Comprehensive Plan
amendments are consistent with the County -wide Planning Policies.
Interlocal Agreements
63. Inter -local agreements between Whatcom County and the cities were
approved in 2012. These agreements, which are valid through 2022,
address a number of growth management planning issues including
inter - jurisdictional coordination, urban growth area review, land
capacity analysis, population and employment projections, and capital
facility planning. These inter -local agreements do not specifically
address Cherry Point.
Page 12 of 16
Further Studies /Changed Conditions
64. The Washington State DNR originally issued the Cherry Point
Environmental Aquatic Reserve Management Plan in November 2010,
and amended the Plan in January 2017.
65. The primary focus of the Cherry Point Environmental Aquatic Reserve
Management Plan is to:
... protect, enhance and restore habitats used by Cherry Point
herring stock, salmon, migratory and resident birds, Dungeness
crab, groundfish rearing areas and marine mammals, as well as
the protection of submerged aquatic vegetation and water
quality... (p. 4).
66. The Cherry Point Environmental Aquatic Reserve Management Plan
states:
... the aquatic environment of Cherry Point: provides essential
habitat and irreplaceable biological and ecological functions; is a
portion of Treaty - protected usual and accustomed (U&A)
grounds and stations of local Native American Indians; and
provides significant economic benefits, recreational
opportunities and other social values... (pp. 4 and 5).
67. The Cherry Point Environmental Aquatic Reserve Management Plan
recognizes that:
... A number of species and habitats addressed in this plan
have experienced declines over the past 40 years, such as the
Cherry Point herring stock, which has shrunk from
approximately 15,000 tons to between 800 and 2,100 tons over
the last ten years... (p. 1).
68. Additionally, Puget Sound Partnership's 2015 State of the Sound -
Report on the Puget Sound Vital Signs indicates that "The Cherry Point
herring stock in North Puget Sound, once the largest stock in the
Sound, has declined by more than 90 percent since the earliest
sampling date in 1973" (p. 45).
69. The Cherry Point Environmental Aquatic Reserve Management Plan
specifically excludes certain areas, including the three existing
industrial piers, from the Reserve (p. 11).
70. The Washington State Commissioner of Public Lands, who leads the
DNR, issued an order on January 3, 2017 expanding the Cherry Point
Environmental Aquatic Reserve to include an additional 45 acres, the
site of a proposed fourth pier.
Page 13 of 16
Public Interest
71. The Cherry Point area contains valuable aquatic ecosystems and fish &
wildlife habitat (Cherry Point Environmental Aquatic Reserve
Management Plan, DNR, amended 2017).
72. The Cherry Point UGA is a unique location, with important attributes,
for industry. Existing industries provide high wage jobs and a
substantial tax base (Employment at Cherry Point, Hodges and Beyers,
2014).
73. The Cherry Point UGA text, goals, and policies, including the subject
amendments, recognize the value of industrial uses and the
importance of marine waters, fish and wildlife habitat, and
archeological sites.
74. The amendments should not adversely affect the rate or distribution of
population growth, employment growth, development, and conversion
of land as envisioned in the comprehensive plan.
75. The amendments should not adversely affect ability of the county
and /or other service providers, such as cities, schools, water and /or
sewer purveyors, fire districts, and others as applicable, to provide
adequate services and public facilities including transportation
facilities.
76. The subject amendments will not adversely impact designated
agricultural, forest and mineral resource lands.
77. Whatcom County Charter Section 1.11 states, 'The rights of the
individual citizen shall be guaranteed under the Constitutions of the
United States and the State of Washington. No regulation or ordinance
shall be drafted and adopted without consideration of and provisions
for compensation to those unduly burdened." The subject policy
amendments do not unduly burden a property owner by leaving him or
her without a reasonable use of his or her property, or otherwise
deprive him or her of legally recognized rights.
78. GMA Planning Goal 6, relating to property rights, states "Private
property shall not be taken for public use without just compensation
having been made. The property rights of landowners shall be
protected from arbitrary and discriminatory actions" (RCW
36.70A.020(6)). The subject policy amendments do not take private
property for public use.
Page 14 of 16
79. The Cherry Point UGA goals and policies, including subject
amendments, continue to allow industrial uses in the Cherry Point
UGA, which provide family wage jobs and contribute to the tax base of
the County and special purpose districts, while seeking to protect the
environment of the area. Such planning is in the public interest.
Spot Zoning
80. "Illegal spot zoning" means a zoning action by which a smaller area is
singled out of a larger area or district and specially zoned for a use
classification totally different from, and inconsistent with, the
classification of surrounding land and not in accordance with the
Comprehensive Plan. Spot zoning is zoning for private gain designed
to favor or benefit a particular individual or group and not the welfare
of the community as a whole (WCC 20.97.186).
81. The subject proposal does not involve nor facilitate illegal spot zoning.
U.S. Constitution — Commerce Clause
82. The U.S. Constitution, Article I, Section 8 (the "Commerce Clause ")
states "The Congress shall have power ... To regulate commerce with
foreign nations, and among the several states, and with the Indian
tribes."
83. The Whatcom County Council finds that the subject amendments are
not inconsistent with the Commerce Clause.
CONCLUSIONS
1. The subject amendments are consistent with the GMA planning goals.
2. The subject amendments satisfy the approval criteria of WCC 2.160.080.
Page 15 of 16
NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that:
Section 1. Amendments to the Whatcom County Comprehensive Plan are hereby
adopted as shown on Exhibit A.
Section 2. Adjudication of invalidity of any of the sections, clauses, or
provisions of this ordinance shall not affect or impair the validity of the
ordinance as a whole or any part thereof other than the part so declared to be
invalid.
ADOPTED this 16th day of
WHATCOM COUNTY COUNCIL
WHATCC �,�iGk NTY, WASHINGTON
µATC ' '
D;gna 13r irm I Qitf�Cou� it Clerk
APPROVED as to form:
Civil Deputy Prosecutor
May , 2017.
�qW
B ry uchanan, Chairperson
( ) Approved ( ) Denied
* **
Jack Louws, Executive
Date:
Page 16 of 16
* ** 6/1/2017: The Executive declined to sign
Cherry Point - County Council Draft (312112017
EXHIBIT A
County Council Version
March 21, 2017
Cherry Point - County Council Draft (31211201
1 Major Industrial Urban Growth Area / Port Industrial
2
3 Cherry Point
4
5 The Cherry Point Urban Growth Area (UGA) contains approximately 7,000 acres of
6 industrial land. The land has long been planned and designated by Whatcom County
7 for industrial development and is currently the site of three major industrial
8 facilities including two oil refineries and an aluminum smelter. Together, these
9 three existing industries own about 4,400 acres of the total Cherry Point industrial
10 lands. A fourth large tract of undeveloped land constituting approximately 1,500
11 acres is designated for industrial development.
12
13 Because of the special characteristics of Cherry Point, including deep water port
14 access,. rail access, and proximity to Canada, this area has regional significance for
15 the siting of large industrial or related facilities. General Petroleum constructed the
16 Ferndale Refinery in 1954 Alumax Pechine Howmet constructed the Aluminum
17 Smelter in 1966, and the Atlantic Richfield Company constructed the Cherry Point
18 Refinery in 1971.
19
20 Cherry Point is also important historically and culturally lo,. the _Coast Salish eople,
21 and Bart of the usual and accustomed fishing area for five treaty tribes, reserved
22 under the Treaty of Point Elliot of 1855. The Lummi Nation and Western
23 Washington University have identified an ancestral village dating back over 3,000
24 years ago in this area. The Cherry Point UGA contains sites of primary
25 archeological and cultural significance.
26
27 Since the designation of this area for industrial development years ago, newer
28 scientific study of the shoreline ecology has identified Cherry Point's unique function
29 as part of the Fraser River /Georgia Strait and greater Salish Sea ecosystem and the
30 associated Cherry Point Aquatic Reserve has been designated by the state
31 Department of Natural Resources to recognize the ecological im o to ce of the
32 aquatic lands in this area.
33
34 Since adoption of earlier versions of this Comprehensive Plan, governments have
35 increased their recognition of the observed and projected effects that fossil fuel
36 extraction, transportation and use have on human health and the environment.
...dustFies likely t l .. a .,
38 e.1 e at Gheffy Perot will likely be -.bse -bed
39
.ur-ing the 20 year pla
40
41 Environmental
42
43 The Cherry Point shoreline a+s-e has great importance to the fisheries and ecology of
44 Northern Puget Sound because it provides essential spawning habitat for what once
45 was the largest herring stock in Washington State. This herring stock has supported
Ira
Cherry Point - County Council Draft (312112017
1 important commercial fisheries in the past and provides forage for salmonids and
2 other important marine species. In 2000 2010 and 2017_ the State Lands
3 Commissioner ordered the Cherry Point tidelands and bedlands withdrawn from the
4 state's general leasing program and designated them as the "Cherry Point Aquatic:
5 Reserve." The following DNR Use Authorizations„ are exempted from withdrawal:
6 Lease appli_eation numbers 20- A09122 (British Petroleum), 20- A11714 (Phillips 66),
7 20- A08488 (Intalco Aluminum Corporation). and 20- 010521 (Birch Bay Water and
8 Sewer District. In December 2010, the DNR recognized the need to "protect the
9 significant environmental resource of aquatic lands at Cherry Point" (CPAR
10 Management Plan p. 1), and completed the Cherry Point Environmental Aquatic
it Reserve Management Plann,, iE -ve-to
12 ensure long -term environmental protection of the alfeeAquatic Reserve. The
13 rReserve extends from the southern boundary of Birch Bay State Park to the
14 northern border of the Lummi Indian Nation Reservation. s ite- e*e4Udes-- three
15 existing aquatie La-rid i �41 i l>s 66 shippi
16 pfep-esed-aquatie land lease.
17
18 The overall purpose of the Cherry Point Aquatic Reserve (CPAR) is to ensure long -
19 term environmental protection for local habitats and species (CPAR MP p. 1).
20 Specific goals include protection and recovery (as applicable) of Cherry Point
21 herring, Nooksack Chinook salmon, ground fish, marine mammals, seabird /duck
22 and shorebird communities, Dungeness crab, and submerged native aquatic
23 vegetation (CPAR MP p. 2). Another goal is to cooperate with other stakeholders "to
24 minimize and reduce identified impacts of human activities on the species and
25 habitats within the Reserve" (CPAR MP p. 2).
26
27 The Management, Plan aeknewledges that the existing inddStFies, eamplying MREIR
28 laws and Fegulati 19, de riot Conflict. with the Aquatie Re5er-ye although thei
29 tie ftesF ve. r deed, he industries' - need -fef
30 !buffeF spaee and their with
31 that FnMuch of the Aquatic Reserve shoreline is in substantially natural riparian
32 vegetation and bluff processes proceed without interference. Existing shoreline and
33 upland stream and wetland functions and values are of continuing impo -tance to
34 the recovery and protection of species identified in the A uatic Reserve
35 Management Plan. The area includes undeveloped intertidal wetlands with
36 im or ante to juvenile salmon and other species,. Existing industries can serve the
37 Aquatic Reserve's objectives so long as they are managed according to the Plan and
38 so long as the lessees actively work to further goals for the Reserve (CPAR MP p.
39 2).
40
41 The County and industrial users have long recognized that the Cherry Point area
42 exhibits a unique set of characteristics that makes land there not only locally but
43 regionally important for the siting of major industrial developments_—espeeia+
44 where cheep water access for shipping is a critical locational factor. These
45 characteristics were articulated in the Overall Economic Development Plan (OEDP)
46 for Whatcom County adopted by the Whatcom County Council of Governments in
3
Cherry Point - County Council Draft (312 112 0 1 7)
1 May, 1993, in the 1997 Property Counselors Report on supply and demand for
2 industrial land in Whatcom County and at Cherry Point, the 2002 Greater Whatcom
3 Comprehensive Economic Development Strategy, the 2003 Whatcom County
4 Industrial Land Study, and the 2015 Whatcom County Comprehensive Economic
5 Development Strategy.
6
7 The United States Congress approved the "Magnuson Amendment" in 1977 in order
8 to restrict tankers carrying crude oil in the Puget Sound area. Congress found that
9 Puget Sound and the adjacent shorelines were threatened by the increased
10 possibility of vessel collisions and oil spills. Therefore, Congress restricted federal
11 agencies from issuing federal permits as follows:
12 - _
13 .. no officer, employee, or other official of the Federal Government shall,�or
14 shall have authority to, issue, renew, grant, or otherwise aplrove any
15 permit, license, or other authority for constructing, renovating, modifying, or
16 otherwise altering_ a terminal, deck,- or_other facility in, on, or immediately
17 adjacent to, or affecting the navigable waters of Puget Sound, or any other
18 navigable waters in the State of Washington east of Part Angeles. which will
19 or may result in any increase in the volume of crude oil capable of being
20 handled at any such facility (measured as of October 18, 1977), other than
21 oil to be refined for consumption in the State of Washington.
22
23 Whatcom County does not enforce the Magnuson Amendment through the local
24 permitting process. However, the County does encourage federal agencies to
25 enforce the Magnuson Amendment. Therefore, the County will strive to make
26 appropriate federal agencies aware of applications for development permits
27 submitted to the County that may be subject to federal agency review under the
28 Magnuson Amendment before issuing local permits when possible (see Policy 2CC
29 15 .
30
31 rChernr Point UGA Features
32
33 The characteristics that make Cherry Point unique as a site for major industrial
34 developments include the following:
35
36 Port Access -
37
38 The marine waters off Cherry Point provide deep water access for shipping. Deep
39 water access for shipping was a major siting consideration for the three major
40 industries currently located at Cherry Point- arm48F 1-;- o. t;;al/s,"; die
41 ctwfefv6y-�i ng-pfepesed.
42
43 Rail Access -
44
45 Cherry Point is served by a branch line of the BNSF Rallway
46 mainline serving western Washington -f r^rn Blaine `e Pe-da Rail service is
47 considered to be vital to statewide as well as local interests for the competitive
11
Cherry Point - County Council Draft (312 112 01 7
1 movement of freight. Rail service is particularly important in relation to water borne
2 commerce. The Cherry Point area has the rail access to support marine terminals
3 and industrial users in the area. Cherry Point industries use rail to ship and receive
4 multiple feedstocks and products. The B refi ,ery -74 iefry Point uses the Fai �r�a�
5 art €a614ties -few t-r-ansshipm -ent
6 te4efeigft-�t . Both the Cherry Point Perim and the Ferndale Refinery4 -a d
7 f4)-i+Nps- 66- re€iner-ies receive crude oil shipments by rail.
8
9 Proximity to Canada, Alaska and Foreign Ports- -
10
11 Cherry Point occupies a unique location for the siting of industry because of its close
12 proximity to Canada and because of its shorter travel distance than other regional
13 port facilities for shipping to and from Alaska and to other Pacific Rim locations. The
14 large acreage, good rail access and proximity to Washington State and Canadian
15 ports makes the remaining upland area at Cherry Paint suitable_ for commercial or
16 industrial _prod uetion with emphasis on major sustainable clean __ener-g_y
17 manufacturing or production (see Policy 2C --3). The Cherry Point industrial area
18 benefits from proximity to Canada, as trade between the U.S. and Canada grows in
19 response to the lifting of trade barriers under the Free Trade Agreement. Canadian
20 exports to the U.S. are expected to increase and Canadian firms exporting to the
21 U.S. are expected to seek locations in the U.S. as a way of improving access to U.S.
22 markets. Compared to other port facilities in Washington and Canada, Cherry Point
23 is not constrained by extensive upland development or vessel draft limitations.
24 Additierrall- y, just us atTrer- pe4 -fae„ties in Wash i n�-e of
25 extensive upland areas to support stF+al- eveie
26 WiFere ale - ifi�t- ed expansion s-- ava +la -bleat
27 R-eber=ts- Batsks -a -n - iT— the- Vaneeuver- -Ha-rbef; and-- deveiep ent-- s+tes4uft- her--up -the
28 C.- . r o:..r f _ fJ l I r9�' y I .! .C1 hA i
ryas F R'vei� -af -11 c ainev by Hniitatie s eir�ues.�adr -a t". Marine terminals
29 C-I fy-P -& �+ l' serve - a pst�i� I—o the fr�te�rtial- g�awthr fr�Ga all-�fi�
30 cargo-
31
32 Presence of Necessary Utilities and Infrastructure
33
34 Cherry Point is a major industrial area in Whatcom County. The Ferndale
35 Refinery was constructed in 1954, the A-ieea In e-W r-ks -- Aluminum Smelter in
36 1966, and the Cherry Point Refinery in 1971. The infrastructure to support these
37 industries and future industrial users at Cherry Point is in place and includes the
38 following:
39
40 Electric Power:
41
42 Electric Power is available from three providers in the Cherry Point area: Puget
43 Sound Energy, Public Utility District #1 (PUD #1), and Bonneville Power
44 Administration.
45
46 Puget Sound Energy owns two electrical generating facilities at Cherry Point. The
47 electricity generated by these two facilities can be transmitted outside the region
5
Cherry Point - County Council Draft (312 112 01 7)
1 into the grid for supply to Puget's customers or some of it can be consumed by
2 Cherry Point customers through interties with the PUD #1. Puget Sound Energy
3 also acquires power from outside the region and transmits it via their transmission
4 grid into Cherry Point. The $P- Cherry Point Refinery purchases electrical supply on
5 the market and pays Puget Sound Energy to transmit the power and operate
6 distribution systems to provide that power to the refinery.
7
8 PUD #1 purchases electricity from the Bonneville Power Administration and takes
9 ownership of that power at the Bonneville substation in Bellingham and then
10 transmits it over its transmission line to Cherry Point to serve the Phillips 66
11 Ferndale Refinery.
12
13 PUD #1 and Puget Sound Energy have interties at Cherry Point allowing the
14 transmission of power in and out of Cherry Point depending on the amount of power
15 generated and consumed at Cherry Point.
16
17 The Bonneville Power Administration supplies power directly to the "leea Tot,',
18 Werks aluminum production facility.
19
20 Water:
21
22 Whatcom County Public Utility District #1 currently provides industrial process
23 water to all major industrial facilities at Cherry Point and has dditional water
24 available provide process water to properties that are currently
25 undeveloped. PUD # 1 also operates a small system to provide potable water to
26 one industry (Praxair). Birch Bay Water and Sewer District provides potable water
27 to the $P— Cherry Point Refinery. The other industries operate their own water
28 treatment facilities to provide potable water for their facilities. Existing industries
29 consume large quantities of water, in many cases drawn from the Nooksack River..
30 It is the County's policy to support renewed efforts to reduce both water
31 consumption levels and the quantity of discharges, in favor of recycled water use
32 (see Policy 2CC-3 and Policy _2CC -10 ).
33
34 Sewer:
35
36 Sewer service is not typically required for large industrial developments. Most of the
37 existing industrial users provide their own on -site sewage treatment and waste
38 water treatment. Sewer service for domestic wastewater is provided to the $R
39 Cherry Point Refinery by the Birch Bay Water and Sewer District. If and when sewer
40 service should become necessary for other industries, service could be provided on
41 a contractual basis with the Birch Bay Water and Sewer District, which borders the
42 Cherry Point industrial area on the north.
43
44
45
46
47
Cherry Point - County Council Draft (31211201
1 Natural Gas:
2
3 Natural gas is currently available at Cherry Point.
4
5 Ali- weather Roads:
6
7 Grandview and Slater roads, the major east -west connectors between Cherry Point
8 and Interstate -5, provide all- weather road access to Cherry Point.
9
10 Use Compatibility and Land Use Designation
11
12 The industries currently located at Cherry Point are a substantial part of the
13 economic base of Whatcom County and the region and the economic welfare of the
14 county is strongly tied to the health of these industries and their ability to flourish
15 and expand as opportunities present themselves. These industries need to be
16 protected from the inappropriate encroachment of incompatible uses; particularly
17 residential uses that could affect their ability to expand,.- at the samt_tme. the
18 expansion of these industries needs to be done in was that do not significantly
19 impact the ecology of the Salish_ Sea or encourage expanded transshipment of
20 unrefined fossil fuels. The best means for protecting these industries from
21 incompatible adjoining uses and to assure their continued regulatory conformity is
22 to maintain the industrial land use designation of these lands and adjoining
23 properties currently designated for industrial development. The Cherry Point
24 industrial lands have been designated for industrial development and as a direct
25 result of the industrial designation, incompatible and inappropriate residential
26 development has been curtailed.
27
28 Goal 2CC: Maintain Cherry Point as an unincorporated urban growth
29 area based on its unique location,,-mid characteristics and
30 its significant contribution to the overall industrial land
31 supply and Whatcom County's tax base.
32
33 Policy 2CC -1: Designate Cherry Point as a major industrial Urban Growth Area
34 to accommodate major users that need to be located away from
35 concentrated urban residential areas and that can manage their
36 activities in such a way that they do not conflict with the goals
37 of the Aquatic Reserve Management Plan.
38
39 Policy 2CC -2: En. UFe that Encourage developments in the Cherry Point UGA to
40 maintain and operate under management plans consistent
41 with Is e€ the Aquatic Reserve Management
42 Plan.
43 Policy 2CC -3: Encourage that future developments or expansions within the
44 Cherry Point UGA are consistent with the following:
45 • _ Clean and reduced carbon emitting technology;
VA
Cherry Point - County Council Draft (312112017
1
+ Avoidance of estuaries and near shore wetlands:
2
. Archeological review;
3
Water recycling technology to minimize water use; and
4
Enhance existing and future industries.
5
6
Policy 2CC -43:
Assure that Cherry Point's unique features of large parcelization,
7
port access, and pipeline, vehicular and rail transportation
8
availability are maintained and protected from incompatible
9
development.
10
11
Policy: 2CC -54:
Require the master planning of each large parcel in advance of
12
any development or subdivision at Cherry Point.
13
14
Policy: 2CC -66:
Require the designation and site plan for a major user (generally
15
40 acres or more) before the development of accessory or
16
supporting uses to assure that accessory or supporting uses are
17
compatible with and will not interfere with the major industrial
18
user.
19
20
Policy: 2CC -76:
Specify 160 acres as a minimum area for planning, prior to the
21
commitment of a parcel for a major user (40 acres or more,
22
singularly or as a cluster or group).
23
24
Policy: 2CC -8 -7:
Permit support activities, warehousing, shipping, machine repair
25
and service, educational services, food service and
26
conveniences, to locate on a parcel only after the completion of
27
a master plan, and the identification and site plan approval for
28
the major user.
29
30
Policy 2CC -98:
Exclude Cherry Point as part of any future incorporation of Birch
31
Bay.
32
. to protect interests of the property owner in terms of
33
taxation and urban regulations;
34
• to preclude urbanism near "smokestack" industries;
35
• to preserve county government tax base.
36
37
Policy 2CC -109:
Continue to work with service providers that serve Cherry Point
38
to ensure the delivery of services and to allow it to develop to
39
its fullest potential, consistent with other Count olicies
40
supporting energy and water conservation.
41
42
Policy 2CC -114$:
It is the policy of Whatcom County to limit the number of
43
industrial piers at Cherry Point to the existing three piers, taking
44
into account the need to:
.r:3
Cherry Point - County Council Draft (312112017
1
• Honor any existing vested rights or other legally enforceable
2
a reements for an additional dock/vier:
3
• Update the Whatcom County Shoreline Master Program to
4
conform with this olic •
5
. Encourage the continued agency use of best available
6
science.
7
• Support and _remain consistent with the state Department of
8
Natural Resources' withdrawal of Cherry Point tidelands and
9
bedlands from the cleneral leasing program and the species
10
recovery goals of the Cherry Paint Aquatic Reserve
11
designation and Management Plan;
12
. Recognize federal actions upholding treaty rights:
13
. Protect traditional commercial and tribal fishing; and
14
i Prevent conflicts with vessel shipment operations of existing
15
refineries that could lead to catastrophic oil or fuels ills.
16
17
18
a•be.ye, this ,t, riu sh_l" t a;Teet, n ,
19
20
KA
21
ate
22
23
Policy 2CC -1234:
RCW 36.70A.365 requires the implementation of Traffic Demand
24
Management (TDM) programs for the designating of a Major
25
Industrial Urban Growth Area. Any employer in the Cherry Point
26
Urban Growth Area that employs one hundred or more full -time
27
employees at a single worksite who begin their regular work day
28
between 6:00 am and 9:00 am on weekdays for at least twelve
29
continuous months during the year are required to meet the
30
TDM requirements of WCC 16.24.
31
32
Policy 2CC -1333:
Work with the Cherry Point industries to maximize public access
33
to the Cherry Point beaches without compromising industrial
34
security.
35
36
Policy 2CC - 14-13:
Cooperate with the DNR and existing industries to monitor the
37
effects of industrial activities on water quality and habitat
38
functions in and adjacent to the Cherry Point Aquatic Reserve.
39
9
Cherry Point - County Council Draft (312 112 01 7)
1 Policy 2CC -15:
Whatcom County will encourage federal agencies, including the
2
U.S. Army Corps of Engineers, to enforce the provisions of the
3
Magnuson Amendment (33 USC _Sec.. 476). To accomplish this
4
the County will make al2l2rogriate federal agencies aware of
5
applications for development permits submitted to the County
6
that _staff thinks may be subject to federal agency review under
7
the Magnuson Amendment.
8
9 Policy 2CC -16:
The County shall undertake a study to be completed if possible
10
by December of 2017 to examine existing County laws
11
including those related to public health, safely. development,
12
building, zoning, [permitting, electrical, nuisance, and fire codes
13
and develop recommendations for legal ways the County may
14
choose to limit the negative impacts on public safety,
15
transportation, the economy, and environment from crude oil,
16
coal, liquefied petroleum gases, and natural gas exports from
17
the Cherry Point UGA above levels in existence as of March 1,
18
2017.
19
20
To provide clear guidance to current and future county councils
21
on the County's legal rights, responsibilities and limitations
22
regarding interpretation and application of project evaluation
23
under Section 20.88.130 (Major Projects Permits ) of the
24
Whatcom County Code.
25
26
The County should consider any legal advice freely submitted to
27
the County by legal experts on 'behalf of a variety of stakeholder
28
interests, and make that advice publicly available.
29
30
• Based on the above study, develop proposed Comprehensive
31
Plan amendments and associated code and rule amendments
32
for Council consideration as soon as possible.
33
34
0 Until the above mentioned amendments are implemented,
35
the Prosecuting Attorney and/or the County Administration
36
should provide the County Council written notice of all known
37
r7e- application correspondence or permit application
38
submittals and notices, federal, state, or local, that involve
39
activity with the potential to expand the ,export of fossil fuels
40
from Cherry Point.
41
42 Policy_ 2CC -17:
Policy 2CC -16 shall not limit existing operations or maintenance
43
of existing facilities as of March 1. 2017.
44
45
46
47
10
Cherry Point - CountV Council Draft (312112017)
Whatcom County IComprehensivePlan Map UGA -10
- Cherry Point Urban Growth Area +.0,0011 CO&
3
® Major Port/Industrial UGA
N 4
11